When a city, its officials, or its agencies conflict, can the city law director represent them through different assistant law directors?
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This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Plain-English summary
The Board addressed whether a city director of law may represent a city and also its officials or entities when those clients are in conflict, using different assistant law directors within the office. The opinion is limited to the Rules of Professional Conduct (Ohio Ethics Law questions belong to the Ohio Ethics Commission). Because a city law director is a current government lawyer, Rule 1.11(d)(1) requires compliance with Rule 1.7, the general current-client conflict rule.
The Board laid out a two-step analysis. First, the law director must decide whether a conflict exists at all under Rule 1.7(a). Not every disagreement is a conflict; a city, its officials, and its entities can hold different views in the ordinary course of governing without being "directly adverse" under Rule 1.7(a)(1), and a material-limitation conflict under Rule 1.7(a)(2) is fact specific. Second, if a conflict exists, the director must decide whether it can be ameliorated under Rule 1.7(b) or is flatly barred by Rule 1.7(c). A Rule 1.7(b) conflict can be undertaken only if the director can provide competent and diligent representation (such as through different assistants), each affected client gives informed consent confirmed in writing, and the representation is not barred by Rule 1.7(c).
The Board emphasized two features of the rules. The Scope section (Comment 18) recognizes that government lawyers may sometimes represent multiple government agencies in intragovernmental controversies where private lawyers could not, and Comment [2] to Rule 1.11 provides that conflicts of a current government lawyer are not imputed to other government lawyers in the office (though screening is prudent). The Board also flagged that Ohio's Rule 1.7(c) is broader than the ABA model: a "proceeding" is not limited to one before a tribunal but includes acts and events before mediators, arbitrators, or other administrative bodies. The upshot is that for Rule 1.7(c) conflicts, including a representation prohibited by law or one client's claim against another in the same proceeding, the office may not represent all sides even through different assistant law directors, because Rule 1.7(c) has no consent cure.
In practice
The opinion holds that, under Ohio Rules 1.11 and 1.7 as adopted effective February 1, 2007, a city law director must analyze each situation rather than assume a conflict. Per the opinion, where a conflict exists but can be ameliorated under Rule 1.7(b), the office may use different assistant law directors if the director finds competent and diligent representation is possible and obtains each affected client's informed consent confirmed in writing. Where Rule 1.7(c) applies, because the representation is prohibited by law or involves one client asserting a claim against another in the same proceeding, the opinion concludes the office may not represent all sides, even through different assistants, since Rule 1.7(c) provides no consent cure. The opinion treats the second example posed, advising a civil service commission on an employee-discipline matter while representing the city in that same matter before the commission, as presenting a strong appearance of a prohibited Rule 1.7(c) conflict.
Common questions
Q: Does every disagreement among city officials create a conflict for the law director?
A: No. The opinion concludes that a city, its officials, and its entities may express different views without being directly adverse; a direct-adversity or material-limitation conflict under Rule 1.7(a) is fact specific.
Q: Can different assistant law directors represent opposing city clients?
A: Sometimes. Per the opinion, that is permissible for conflicts curable under Rule 1.7(b) with competent representation and informed written consent, but not for conflicts falling under Rule 1.7(c).
Q: Why doesn't screening solve a Rule 1.7(c) conflict?
A: The opinion explains Rule 1.7(c) has no consent provision; where a representation is prohibited by law or pits one client's claim against another in the same proceeding, the office may not represent all sides even through different assistants.
Q: Is "proceeding" in Ohio's Rule 1.7(c) limited to court cases?
A: No. The opinion concludes Ohio's Rule 1.7(c), unlike the ABA model, reaches acts and events before mediators, arbitrators, or other administrative bodies, not just a tribunal.
Background and rules framework
The opinion interprets Ohio Prof. Cond. R. 1.11 (special conflicts for current and former government officers and employees), whose division (d)(1) requires a current government lawyer to comply with Rule 1.7, and Rule 1.7 (concurrent conflicts of interest), including the Rule 1.7(b) cure conditions and the Rule 1.7(c) non-consentable categories (Model Rules 1.11, 1.7). It also relies on the Scope section's Comment 18 on government-lawyer authority and Comment [2] to Rule 1.11 on non-imputation within a government office.
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 1.11(d)(1); R. 1.7(a), (b), (c); Scope Comment 18; R. 1.11 Comments [1]-[2] (Model Rules 1.11, 1.7)
Statutes:
- Ohio Rev. Code 733.51-733.62, 733.621, 1901.34, 3313.35 (duties of a city director of law and assistants)
Other opinions cited:
- ABA Formal Op. 97-405 (1997): identity of the government client for conflict purposes
See also
- Ohio BPC Op. 2005-005: Former Magistrate Representing a Party in a Post-Decree Matter
- Ohio BPC Op. 1993-010: Conflicts Between Divisions of a Legal Aid Society
- Ohio BPC Op. 2006-006: CSEA Staff Attorney Representing the State After Serving as Hearing Officer
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_07-004.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2007-4
Issued June 8, 2007
SYLLABUS: A city director of law must apply Rule 1.11 and Rule 1.7 of the Ohio
Rules of Professional Conduct to determine whether a conflict of interest exists
between or among a city, city officials, or city entities and whether representation
may be provided to each by assistant city law directors employed in the law
director’s office. Rule 1.11(d)(1) requires a city director of law to comply with
Rule 1.7. The application of Rule 1.7 requires the exercise of professional
judgment. First, a city director of law must determine whether there is a conflict
of interest under Rule 1.7(a)(1) or (a)(2). Not every disagreement among a city,
its officials or its entities creates a conflict of interest. Second, if a conflict of
interest exists, the city director of law must determine whether the conflict falls
under Rule 1.7(b) or Rule 1.7(c). Rule 1.7(b) allows the representation of clients
with a conflict of interest, if the ameliorating conditions set forth in Rule 1.7(b)(1)
through (3) are met. The conditions are that the city director of law must
determine whether competent and diligent representation could be provided,
such as through different assistant city law directors; must obtain informed
consent confirmed in writing by the affected clients, and must determine that the
representation is not prohibited by Rule 1.7(c). Rule 1.7(c)(1) prohibits, even
with client consent, representations prohibited by law. Rule 1.7(c)(2) prohibits,
even with client consent, a representation of clients that involves the assertion of
a claim by one against another in the same proceeding. For purposes of Rule
1.7(c), a proceeding includes acts and events before a tribunal, as well as acts
and events before mediators, arbitrators, or other administrative bodies.
Whether representation may be provided by different assistant city law directors
employed in the office of the city director of law depends upon whether the
conflict of interest is one that may be ameliorated under Rule 1.7(b) or one that
falls under Rule 1.7(c). For conflicts of interest that may be ameliorated under
Rule 1.7(b), representation by different assistant law directors is appropriate if
the law director determines that the conditions set forth in (b)(1) through (b)(3)
are met. For conflicts of interest that fall under Rule 1.7(c), once a city director of
law determines that a representation is prohibited by law or that the city, its
officials, or its entities have a claim against each other in the same proceeding,
the city director of law should not attempt to represent all of them in the
Op. 2007-4 2
proceeding, not even through different assistant law directors employed in the
office of the city director of law.
OPINION: This opinion addresses a question regarding conflicts of interest of a
city director of law in representing a city, city officials, and city entities. This
opinion does not address conflicts of interest of the attorney general’s office in
representing several government agencies in intragovernmental legal
controversies.
When there is a conflict of interest between or among a city, city
officials, or city entities, is it proper for a city director of law to
provide legal counsel to each through different assistant law
directors employed in the city law director’s office?
Duties of a city director of law
As a lawyer, a city director of law is subject to the Ohio Rules of Professional
Conduct, for which the Board of Commissioners on Grievances and Discipline is
the appropriate advisory body. As a government officer, a city director of law is
also subject to Ohio Ethics Law, for which the Ohio Ethics Commission is the
appropriate advisory body. This advisory opinion is limited to the Board’s
application of the Ohio Rules of Professional Conduct, pursuant to its advisory
authority under Gov.Bar R. V § 2(C).
A city director of law of a municipal corporation provides legal advice and
representation to a municipality, its officers, and its entities. The legal duties of a
city director of law of a municipal corporation are established by law. See e.g.,
Ohio Rev. Code Ann. §§ 705.11, 733.51, 733.52, 733.53, 733.54, 733.56,
733.57, 733.58, 733.62 (West 1994); § 1901.34 (West Supp. 2006), and §
3313.35 (West 2005). In a charter city which exercises the powers of local self-
government pursuant to Section 3, Art. XVIII, Ohio Constitution the legal duties
will depend upon the charter.
Sometimes, a city director of law employs assistant law directors in the office to
assist in carrying out the legal duties of the office. Ohio Rev. Code Ann. §
733.621 (West 1994).
Inevitably, a city director of law will face conflicts of interest when fulfilling the
duty of providing legal advice and representation to a city, city officials or its
entities. The requester of this opinion raises two examples: 1) providing legal
advice to city and to a school board when there is a dispute between the two; 2)
representing a city in a disciplinary proceeding against an employee before the
civil service commission while providing legal counsel to the civil service
commission regarding the employee discipline matter.
Rules governing conflicts of interest of a current government lawyer
Op. 2007-4 3
Rule 1.11 and Rule 1.7 of the Ohio Rules of Professional Conduct are pertinent
to this opinion. Rule 1.11 is a special rule governing conflicts of interests of a
current government lawyer. Rule 1.7 is the general rule governing conflicts of
interest with current clients. A current government attorney is required by Rule
1.11(d)(1) to comply with Rule 1.7, except as law may otherwise expressly
permit.
Rule 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER
AND CURRENT GOVERNMENT OFFICERS AND EMPLOYERS
(d) Except as law may otherwise expressly permit, a
lawyer currently serving as a public officer or employee shall
comply with both of the following:
(1) Rules 1.7 [Conflicts of Interest: Current
Clients] and 1.9 [Conflicts of Interest: Former Clients];
(2) [Omitted].
Comment [1] to Rule 1.11 explains that a lawyer who has served or who is
currently serving as a public officer or employee is subject to the prohibition
against concurrent conflicts of interest in Rule 1.7.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) A lawyer’s acceptance or continuation of
representation of a client creates a conflict of interest if either of the
following applies:
(1) the representation of that client will be directly
adverse to another current client;
(2) there is a substantial risk that the lawyer’s
ability to consider, recommend, or carry out an appropriate
course of action for that client will be materially limited by the
lawyer’s responsibilities to another client, a former client, or
a third person or by the lawyer’s own personal interests.
(b) A lawyer shall not accept or continue the
representation of a client if a conflict of interest would be created
pursuant to division (a) of this rule, unless all of the following apply:
(1) the lawyer will be able to provide competent
and diligent representation to each affected client;
Op. 2007-4 4
(2) each affected client gives informed consent,
confirmed in writing;
(3) the representation is not precluded by division
(c) of this rule.
(c) Even if each affected client consents, the lawyer shall
not accept or continue the representation if either of the following
applies:
(1) the representation is prohibited by law;
(2) the representation would involve the assertion
of a claim by one client against another client represented by
the lawyer in the same proceeding.
Special consideration given to government lawyers
In application of these rules, it is important to note that The Ohio Rules of
Professional Conduct give special consideration to government lawyers as to
conflicts of interest.
Rule 1.11(d) requires a government lawyer to comply with Rule 1.7, except as
law may otherwise expressly permit.
The Scope Section of the rules acknowledges there may be circumstances in
which a government lawyer may undertake a representation of multiple parties
where a private lawyer may not. Comment 18, of the Scope Section states:
Under various legal provisions, including constitutional, statutory,
and common law, the responsibilities of government lawyers may
include authority concerning legal matters that ordinarily reposes in
the client in private client-lawyer relationships. For example, a
lawyer for a government agency may have authority on behalf of
the government to decide upon settlement or whether to appeal
from an adverse judgment. Such authority in various respects is
generally vested in the attorney general and the state’s attorney in
state government, and their federal counterparts, and the same
may be true of other government law officers. Also, lawyers
under the supervision of these officers may be authorized to
represent several government agencies in intragovernmental
legal controversies in circumstances where a private lawyer
could not represent multiple private clients. These rules do
not abrogate any such authority. [Emphasis added].
Op. 2007-4 5
Further, special consideration is given to government attorneys as to imputation
of conflicts of interest. Comment [2] to Rule 1.11 explains:
Divisions (a)(1), (a)(2) [which apply to former service as a
government officer or employee] and (d)(1) [which applies to
current service as a government officer or employee] restate the
obligations of an individual lawyer who has served or is currently
serving as an officer or employee of the government toward a
former government or private client. Rule 1.10 is not applicable to
the conflicts of interest addressed by this rule. Rather, division (b)
sets forth a special imputation rule for former government lawyers
that provides screening [by a law firm] and notice [to the
government]. Because of the special problems raised by
imputation within a government agency, division (d) does not
impute the conflicts of a lawyer currently serving as an officer or
employee of the government to other associated government
officers or employees, although ordinarily it will be prudent to
screen such lawyers.
Application of rules
Application of Rule 1.7 requires professional judgment. Disagreements are
bound to occur with the city, its officers, and its entities. But, not every
disagreement creates a conflict of interest for a city law director.
First, a city director of law must determine whether there is a conflict of interest
under Rule 1.7.
A determination of whether there is a conflict of interest under either Rule
1.7(a)(1) or (a)(2) requires a city director of law to examine the duties of the office
and the identity of the entities or officials to whom these duties are owed. See
ABA Formal Opinion 97-405 (1997) for its discussion of the identity of a
government client for conflict of interest purposes.
Under Rule 1.7(a)(1) a conflict of interest exists in the representation if the city,
its entities, or the city officials are directly adverse to each other. Direct adversity
should not be equated with discussions in which there are differing opinions. A
city, its entities, or its officials may express different views without being directly
adverse to each other. Expression of different views while discussing an issue or
topic is part of the process of city government. Determination of a direct
adversity conflict of interest is fact and circumstance specific.
Under Rule 1.7(a)(2), a conflict of interest exists if there is a substantial risk that
the ability of the city director of law to carry out the representation of one (the
city, its officials, or its entities) will be materially limited by responsibilities to
Op. 2007-4 6
another. Determination of a material limitation conflict of interest is fact and
circumstance specific.
Second, if there is a conflict of interest, the city director of law must determine
whether the conflict may be ameliorated under 1.7(b) so that representation of all
the affected clients may be undertaken, or whether such representation all the
affected clients is flatly prohibited by Rule 1.7(c).
Under Rule 1.7(b) a conflict of interest may be ameliorated if under (b)(1), a city
director of law decides that competent and diligent representation could be
provided, such as through different assistant law directors appropriately
screened; if under (b)(2) a city director of law obtains informed consent,
confirmed in writing by the affected clients to the dispute, and under (b)(3), a city
director of law determines that the representation is not prohibited by Rule 1.7(c).
Under Rule 1.7(c) a representation is flatly prohibited, even with the informed
consent of the clients if 1) the representation is prohibited by law or 2) the
representation involves the assertion of a claim by one client against another
client represented by the lawyer in the same proceeding.
The word “proceeding” as used in 1.7(c)(2) is not defined in the rule. We look
outside the Rule for its meaning.
proceeding. 1. The regular and orderly progression of a lawsuit,
including all acts and events between the time of commencement
and the entry of judgment. 2. Any procedural means for seeking
redress from a tribunal or agency. 3. An act or step that is part of a
larger action. 4. The business conducted by a court or other official
body; a hearing. 5. Bankruptcy. A particular dispute or matter
arising within a pending case—as opposed to the case as a whole.
Black’s Law Dictionary 1241 (8th ed. 2004).
legal proceeding. Any proceeding authorized by law and instituted
in a court or tribunal to acquire a right or to enforce a remedy.
Black’s Law Dictionary 915 (8th ed. 2004).
A “proceeding” under Ohio Rule 1.7(c) is not limited to a proceeding before a
tribunal. A “proceeding” includes acts and events before a tribunal, as well as
acts and events before mediators, arbitrators, or other administrative bodies.
In adopting Rule 1.7(c), Ohio chose a different approach from the ABA. ABA
Model Rule 1.7(c) uses the words “proceeding before a tribunal.” Comment 17 to
ABA Model Rule 1.7(c) explains that mediation is not a “proceeding before a
tribunal.” Ohio’s Rule 1.7(c) does not limit a “proceeding” to a “proceeding before
Op. 2007-4 7
a tribunal.” The notes following Ohio’s Rule 1.7(c), in the section entitled
Comparison to ABA Model Rules of Professional Conduct, explain that a
proceeding could include mediation.
Representation by assistant city law directors employed in the office of
the city director of law
As to representation by assistant city law directors employed in the office of the
city director of law, the Board’s view is as follows. For those types of conflicts of
interest that can be ameliorated under Rule 1.7(b) by compliance with the
requirements of Rule 1.7(b)(1) through (b)(3), representation through different
assistant law directors may be appropriately carried out—the affected clients to
the conflict have the opportunity of disclosure and informed consent confirmed in
writing.
But, for conflicts of interest falling under Rule 1.7(c), namely, a representation
prohibited by law or a representation involving a claim in the same proceeding by
one client against another to whom the city law director has a legal duty to
represent, the representation of each affected client should not be carried by the
city director of law, even through different assistant city law directors employed in
the office of the city director of law. Rule 1.7(c) provides no consent provision to
ameliorate the conflict.
Thus, if a city director of law determines that the city, its officials, or its entities
have a claim against each other in the same proceeding, the city director of law
should not attempt to represent all the sides in the proceeding, even through
different assistant city law directors employed in the office of the city director of
law.
In both examples raised by the requester more facts would be needed for a
determination. As to the first example raised by the requester, a city director of
law or his or her assistant law directors providing legal advice to a city and to a
school board when there is a dispute between the two, more facts would be
needed such as whether there is a conflict of interest and whether there is a
proceeding in which claims by one against the other are asserted. However, as
to the second example raised by the requester, a city director of law representing
a city in a disciplinary proceeding against an employee before the civil service
commission while providing legal counsel to the civil service commission
regarding the employee discipline matter, there is a strong appearance that
advising a civil service commission as to a particular employee discipline matter
while representing the city in the matter before the commission is inappropriate
under Rule 1.7(c).
Thus, in conclusion, the Board advises as follows. A city director of law must
apply Rule 1.11 and Rule 1.7 of the Ohio Rules of Professional Conduct to
determine whether a conflict of interest exists between or among a city, city
Op. 2007-4 8
officials, or city entities and whether representation may be provided to each by
assistant city law directors employed in the law director’s office. Rule 1.11(d)(1)
requires a city director of law to comply with Rule 1.7. The application of Rule
1.7 requires the exercise of professional judgment. First, a city director of law
must determine whether there is a conflict of interest under Rule 1.7(a)(1) or
(a)(2). Not every disagreement among a city, its officials or its entities creates a
conflict of interest. Second, if a conflict of interest exists, the city director of law
must determine whether the conflict falls under Rule 1.7(b) or Rule 1.7(c). Rule
1.7(b) allows the representation of clients with a conflict of interest, if the
ameliorating conditions set forth in Rule 1.7(b)(1) through (3) are met. The
conditions are that the city director of law must determine whether competent
and diligent representation could be provided, such as through different assistant
city law directors; must obtain informed consent confirmed in writing by the
affected clients, and must determine that the representation is not prohibited by
Rule 1.7(c). Rule 1.7(c)(1) prohibits, even with client consent, representations
prohibited by law. Rule 1.7(c)(2) prohibits, even with client consent, a
representation of clients that involves the assertion of a claim by one against
another in the same proceeding. For purposes of Rule 1.7(c), a proceeding
includes acts and events before a tribunal, as well as acts and events before
mediators, arbitrators, or other administrative bodies.
Whether representation may be provided by different assistant city law directors
employed in the office of the city director of law depends upon whether the
conflict of interest is one that may be ameliorated under Rule 1.7(b) or one that
falls under Rule 1.7(c). For conflicts of interest that may be ameliorated under
Rule 1.7(b), representation by different assistant law directors is appropriate if
the law director determines that the conditions set forth in (b)(1) through (b)(3)
are met. For conflicts of interest that fall under Rule 1.7(c), once a city director of
law determines that a representation is prohibited by law or that the city, its
officials, or its entities have a claim against each other in the same proceeding,
the city director of law should not attempt to represent all of them in the
proceeding, not even through different assistant law directors employed in the
office of the city director of law.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for
the Government of the Judiciary, the Ohio Rules of Professional Conduct,
the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.
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